A LEVEL LAW PAPER 1 - structure guidance

A LEVEL LAW PAPER 1 - structure guidance

In part A of this booklet are suggested answers for the SUBSTANTIVE LAW content required to answer possible questions (7, 8, 10 and 11) in the paper 1 exam. For questions that involve a case study/scenario we have inserted the phrase APPLICATION where you MAY need to relate the law to the facts of the scenario. In part B are extended versions of part A content. In part C are suggested answers for NON-SUBSTANTIVE LAW content (English legal system) which can be assessed on Q6 and Q11 in the paper 1 exam

CONTENTS

PART A – SUBSTANTIVE LAW (CRIME) – pages 2-17

Page 2 - CAUSATION

Pages 3 – 4 – NON-FATAL OFFENCES

Pages 5 – 8 – GENERAL DEFENCES

Page 9 – ATTEMPTS

Pages 10 – 12 – MURDER/VOLUNTARY MANSLAUGHTER

Pages 13 - 14 – INVOLUNTARY MANSLAUGHTER

Pages 15 – 16 – THEFT

Page 17 – ROBBERY

PART B - EXTENDED VERSIONS OF SUBSTANTIVE LAW (CRIME) TOPICS – pages 18-33

PART C – NON-SUBSTANTIVE LAW (ENGLISH LEGAL SYSTEM) – pages 34-47

PART D – THEORY/CONCEPTS – pages 48-52

STATUTORY INTERPRETATION

JUDICIAL PRECEDENT

JURIES

LEGAL PERSONNEL

JUDGES

PART A – Substantive law (crime)

CAUSATION

The chain of causation is the series of links between the unlawful conduct of the defendant and the final result.

Factual causation uses the “but for” test i.e. but for D’s conduct would the result have occurred? (Pagett)

(APPLY FACTUAL)

In this case but for …….

Legal causation requires the Defendant’s conduct to be a more than minimal cause.

ONLY IF RELEVANT TO THE SCENARIO

Intervening events may break the chain of causation if they are unforeseeable e.g. a daft response of the victim (Williams).

Individual characteristics of the victim will not break the chain due to the thin skull rule (Blaue).

Actions of third parties like medical staff can break the chain if their actions are seen as sufficiently independent acts to break the chain of causation. Following Cheshire, acts of third parties would only break the chain of causation if D’s conduct can be seen as insignificant.

(APPLY LEGAL AND BREAKS) Do any of the possible breaks apply? If so use the scenario facts to state why and try to decide whether the chain of causation is broken. If it IS BROKEN then conclude that D is NOT the legal cause but if you think the chain IS NOT BROKEN then conclude that D still IS the legal cause.

NON-FATAL OFFENCES

Assault

Assault is defined as conduct which makes the victim apprehend immediate unlawful physical force. Conduct may occur through acts or through words. Apprehension requires awareness of the unlawful physical force. “Immediate” means “imminent” i.e. the physical force is “hanging over” the victim (Smith v Woking Police).

(APPLICATION)

The mens rea of assault is to intend or be reckless about making the victim apprehend immediate unlawful physical force (Venna).

(APPLICATION)

Battery

Battery is defined as the application of unlawful physical force. Application can be direct or indirect and can be committed by an omission. Physical force includes the “least touching in anger”. It can be committed by touching the clothes a person is wearing (Thomas).

(APPLICATION)

The mens rea of battery is to intend or be reckless about applying the force (Venna).

(APPLICATION)

Assault occasioning Actual bodily harm (s.47 OAPA 1861)

Assault occasioning actual bodily harm falls under s.47 of the Offences Against the Person Act 1861. The first element of the actus reus, the assault, is either an assault or a battery. Define the relevant one and then apply.

(APPLICATION)

“Occasioning” means “causing”, so the defendant’s initial assault must be the factual and legal cause of the harm suffered.

(APPLICATION)

Actual bodily harm was defined as anything more than trivial or insignificant, it can be psychological but fear is not enough. In Miller it was defined as ‘anything intended to interfere with the health and comfort of the victim’.

(APPLICATION)

The mens rea for s.47 is the mens rea for the initial assault or battery (Savage).

(APPLICATION)

S.20/ S.18 ACTUS REUS

The offences of wounding and grievous bodily harm (GBH) fall under s.20 and s.18 of the Offences Against the Person Act 1861. The actus reus is wounding or causing GBH. Wounding requires there to be a break in the layers of the skin (Eisenhower). For GBH, “grievous” simply means serious (Saunders).

(APPLICATION)

S.20 MENS REA

The mens rea for s.20 is intention or recklessness to cause some harm (Mowatt).

(APPLICATION)

S18 MENS REA

The mens rea requires intention to cause grievous bodily harm (Belfon).

(APPLICATION)

GENERAL DEFENCES

Intoxication

Intoxication may be a defence if it prevents D from forming the mens rea for the offence but not if it merely lowers their inhibitions (Kingston).

(APPLICATION)

Intoxication may be voluntary or involuntary. It is voluntary where the defendant has chosen to take the intoxicating substance. Intoxication is involuntary either where the defendant was unaware he was taking an intoxicant (e.g. a spiked drink), or where taking prescription drugs had an unanticipated effect (Hardie).

(APPLICATION – voluntary or involuntary?)

Voluntary intoxication is a defence to specific intent crimes (those that do not have recklessness in the mens rea). However, where possible the defendant will be convicted of the nearest basic intent alternative e.g. s.20 instead of s.18. Voluntary intoxication is not a defence to a basic intent crime (recklessness in mens rea) (Majewski).

(APPLICATION – if voluntary)

If the intoxication is involuntary, the defendant will be acquitted of both specific and basic intent offences.

(APPLICATION – if involuntary)

Self-Defence and the Prevention of Crime

S.76 of the CJIA 2008 codified existing common law and provides a complete defence to a person using self-defence or prevention of crime.

Firstly, force must be necessary based on the defendant’s genuine belief as to the facts. It does not matter that this belief is mistaken (Gladstone Williams).

(APPLICATION)

Secondly, the defendant may only use reasonable force. The amount of force is not to be regarded as reasonable if it is disproportionate in the circumstances. But under s.76(7), the defendant is not expected to “weigh to a nicety the exact measure of any necessary action”. Further, there is no need to retreat (Bird).

(APPLICATION)

Automatism

Automatism is a complete defence that, if successful, will result in acquittal. There are two elements to satisfy.

Firstly, there must be an involuntary act. This requires a total loss of voluntary control. In Bratty, Lord Denning stated that this was limited to acts done by the muscles without control (spasms, reflex actions) or unconscious acts.

(APPLICATION)

Secondly, the automatism must result from an external source, for example a blow to the head.

(APPLICATION)

It is not available where the defendant is responsible for causing his loss of voluntary control as (known as self-induced automatism) (Bailey).

(APPLICATION)

Insanity

Insanity makes available the special verdict of “not guilty but insane”. The principles upon which this defence is based were set out in the M’Naghten rules.

Firstly, the defendant must prove on the balance of probabilities that s/he must be suffering from a defect of reason. This may be temporary or permanent. A defect of reason is more serious than mere forgetfulness (Clarke).

(APPLICATION)

Secondly, the defect of reason must be caused by a disease of the mind. This can be caused by a variety of internal factors, either mental diseases or physical ones that affect the mind. Examples would be epilepsy, hyperglycaemia and even sleepwalking.

(APPLICATION)

Finally, the defect of reason must result in the defendant not knowing either the nature and quality of his act, or that it was wrong. In Windle the defendant suffered from a form of medical insanity, but could not use the defence as there was evidence that he knew his actions were legally wrong.

(APPLICATION)

Duress/Duress of circumstances

Duress by threats

Duress is a defence based on the fact that the D has committed the offence because he has been threatened with death or serious injury. It is not available for murder (Howe) or attempted murder (Gotts).

Firstly, the threat must be accompanied by an order to commit a specified crime (Cole).

(APPLICATION)

In theory the threat must be an immediate one of death or serious injury. However, this appears to mean that the threat must be effective at the moment the crime is committed but not that the threats need to be able to be carried out immediately (Hudson and Taylor).

(APPLICATION)

The threat should be one of death or serious injury. However, provided there are serious threats, then the cumulative effect of the threats (including revealing sensitive information) can be considered.

(APPLICATION)

The threat of violence must be to the defendant or a person for whom he has responsibility or persons for whom the situation makes him responsible (including threats to family or friends).  

(APPLICATION)

The threat must be so great as to overbear the ordinary powers of human resistance. The jury must consider a two-stage test (Graham). Was the D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death? (subjective test). If so, would a sober person of reasonable firmness, sharing the same characteristics of the accused have responded in the same way? (objective test)

Characteristics that can be taken into account include sex, age, pregnancy and mental illness but not a low IQ. The relevant characteristics must go to the ability to resist pressure and threats.

(APPLICATION)

Duress can only be used as a defence if the D has no “safe avenue of escape”.

(APPLICATION)

If the source of the threat is an organisation known for violence which D joined voluntarily the defence will not be available. However, if the organisation is not normally known for violence the defence may succeed.

(APPLICATION)

Duress of circumstances

The first case in which this was recognised was Willer. It involves D arguing that the cumulative pressure of surrounding circumstances forced them to commit a crime.

(APPLICATION)

ATTEMPTS

Section 1(1) Criminal Attempts Act 1981 (CAA 1981) defines an attempt crime.

The actus reus is doing ‘an act which is more than merely preparatory to the commission of the offence’. There must be an act not an omission. It is a matter for the jury if the defendant is only getting ready to commit the offence (merely preparatory) (Geddes) or is in the process of attempting to commit it (more than merely preparatory) (Toothill).

(APPLICATION) – are D’s acts only preparatory or have they started to commit the offence?

S.1(1) CAA 1981 provides that the mens rea for an attempt is intention.

(APPLICATION) – has D got INTENTION to commit all elements of the offence?

Impossibility (if relevant)

S.1(2) CAA 1981 provides: ‘A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.’

(APPLICATION)

MURDER/VOLUNTARY MANSLAUGHTER

The actus reus of murder is the unlawful killing of a human being during the King’s peace. Essentially this requires an act or omission that has caused death.

(APPLICATION – was it an act or omission? If omission what is the duty situation? Factual causation “but for …. the death would/would not have occurred”? Legal causation are there any possible breaks in chain of causation or is D still more than minimal cause. Only apply law relating to human being if relevant e.g. Malcherek).

The mens rea of murder is “malice aforethought, express or implied”. This consists of an intention to kill or an intention to cause grievous bodily harm (Vickers). It can also include oblique intent. If the consequence of death or GBH was virtually certain and D realised this, then the jury may find that he intended the consequence (Woollin).

(APPLICATION) – if direct intent why was D’s aim to kill or cause serious (rather than just some) bodily harm? If oblique, why was death or GBH a VIRTUALLY CERTAIN consequence (rather than just very likely)?

Diminished Responsibility (partial defence to murder)

Diminished Responsibility is a partial defence available on a charge of murder that leads to a conviction for manslaughter. Its elements are stated in s.2 Homicide Act 1957 (amended by s.52 Coroners and Justice Act 2009). Firstly, the defendant must suffer from an abnormality of mental functioning (AMF) i.e. a state of mental functioning so different from that of ordinary human beings that a reasonable man would term it abnormal (Byrne).

(APPLICATION)

This must arise from a recognised medical condition (RMC), such as chronic depression

(APPLICATION)

This must substantially impair the defendant’s ability to do one or more of three things under s.52(1A) which are; the ability to understand the nature of his conduct, to form a rational judgment, or to exercise self-control.

(APPLICATION)

The impairment must be substantial, in Egan the CA declared that “substantially” meant more than trivial but less than total impairment

(APPLICATION)

The above must provide an explanation for the defendant’s acts and omissions in the killing. If D was intoxicated at the time of the killing, the jury has to decide whether, ignoring the intoxication, his abnormality substantially impaired his mental responsibility for his acts.

(APPLICATION)

If alcohol or drug use had caused degenerative changes then the defendant was suffering from a recognised medical condition s.52(1)(a). If D was suffering from alcohol or drug dependency at the time of the killing which didn’t cause degenerative changes, the jury must be satisfied that drinking attributable to the dependency impaired the defendant’s ability to do one or more of the three things under s.52(1A). (APPLICATION)

Loss of Control (partial defence to murder)

The defence of loss of control is found under s.54(1) of the Coroners and Justice Act 2009 (CJA 2009). A successful plea reduces a verdict of murder to one of guilty of manslaughter.

There are three main elements, firstly D must suffer a loss of control i.e. a loss of the ability to act in accordance with considered judgement or a loss of normal powers of reasoning. The loss of self-control does not need to be sudden but the defence is not available where the killing is motivated by a considered desire for revenge.

(APPLICATION)

Secondly the loss of control must have had a qualifying trigger - fear or anger. The fear trigger is where the defendant lost self-control due to fear of serious violence from the victim against either themselves or another identified person. (Ward)

(APPLICATION)

The anger trigger is “attributable to a thing or things done or said (or both) which (i) constituted circumstances of an extremely grave character, and (ii) caused the defendant to have a justifiable sense of being seriously wronged’.

(APPLICATION)

(FOR NEXT PARAGRAPH ONLY EXPLAIN AND APPLY RESTRICTIONS THAT ARE RELEVANT)

There are three restrictions on the availability of these triggers.

Firstly, D’s fear of serious violence is to be disregarded if D incited something to be done or said to provide him with the excuse to use violence. Secondly, if D incited a thing to be done or said that caused in him a sense of being seriously wronged. Thirdly, anything said or done in connection with sexual infidelity is to be disregarded. Where other factors count as a qualifying trigger, sexual infidelity may be taken into account in assessing whether things done or said amounted to circumstance of an extremely grave character and gave D a justifiable sense of being seriously wronged (Clinton).

(APPLICATION)

INVOLUNTARY MANSLAUGHTER

Unlawful Act Manslaughter

Unlawful act manslaughter occurs when the defendant commits a dangerous, unlawful act which causes the death of the victim. Firstly, the defendant must commit a criminal act. An omission is not sufficient. (APPLICATION)

Secondly, the unlawful act must be dangerous i.e. likely to cause some harm (Church). This is an objective test, the defendant does not need to realise his act was likely to cause some harm, as long as it was obvious to the reasonable man.

(APPLICATION)

Thirdly, the unlawful act must be the cause of the death.

(APPLICATION)

The defendant must be shown to have had the mens rea required for the unlawful act upon which his liability is based (Lamb).

(APPLICATION)

Gross Negligence Manslaughter

The actus reus of gross negligence manslaughter is the same as for any homicide offence, i.e. the unlawful killing of a human being.

According to Lord Mackay in Adomako, D must owe a duty of care to his victim.

(APPLICATION) – is there a duty owed and if so why?

Secondly there must be a breach of this duty: D must fall below the standards of the reasonable man. This is an objective test taking into account the relevant risk factors.

(APPLICATION) – Who is D compared to? What are the relevant risk factors? Have they fallen below the standard expected?

D’s negligence must be the factual and legal cause of death.

(APPLICATION) – but for test, any possible breaks in chain?

Thirdly, the degree of negligence shown by the defendant has to be “gross”. In Adomako Lord Mackay referred to the conduct of the defendant being “so bad in all the circumstances as to amount to a criminal act or omission” and Bateman described this as showing a disregard for the life and safety of others.

(APPLICATION)

Finally, in Adomako Lord Mackay referred to the need for a “risk of death”.

(APPLICATION)

THEFT

DEFINITION

Section 1 of the Theft Act 1968 (TA 68) states; A person is guilty of theft if they “dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it.”

ACTUS REUS

According to s.3(1) “a person appropriates property the moment s/he assumes any of the rights of the true owner”. 

(APPLICATION)

s.4(1) TA 68 defines “Property” as ‘money and all other property, real and personal, including things in action and other intangible property’. 

(APPLICATION)

According to s.5(1) Theft Act 1968 “ property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest ….. ”  This definition is wide enough to cover theft of your own property (Turner). 

(APPLICATION)

OTHER ACTUS REUS ISSUES THAT WILL DEPEND ON THE SCENARIO

LAND - Land is a separate category and there are only three circumstances in which land can be stolen.  These are a) where a person is dealing with land in a special capacity; b) where a person not in possession of land severs something from it; and c) where a person in possession of land as a tenant appropriates a structure or fixture let with the land. 

WILD PLANTS/FLOWERS - if something is growing wild it would be theft to take the whole plant or any for commercial purposes. 

WILD ANIMALS - it is not theft to take live or dead wild animals unless they have already been taken into possession by someone else. 

INFORMATION - Information cannot be stolen (Oxford v Moss).

OBLIGATION TO DEAL - this is when property is received from another under an obligation to retain and deal with it in a particular way as in Klineberg & Marsden. 

MISTAKE - Where property is received as a result of a mistake (e.g. overpayment of wages) there is a legal obligation to make restoration, as in AG’s Reference (No1 1983). 

LOST/ABANDONED PROPERTY - Where property is lost it remains property belonging to another. Where a person abandons property then the property is not belonging to another as the rights of ownership have been relinquished.  Property donated to charity is not abandoned, the items remain the property of the donor until it is taken into possession by the charity, when in the charities possession it is then the property of the charity (Ricketts v Basildon Magistrates).

MENS REA

D must appropriate the property dishonestly (s2).  The two-stage test from Ivey v Genting Casinos -

1.  What was the actual state of the individual’s knowledge or belief as to the facts? This must be genuinely held but doesn’t have to be reasonable (subjective).

2. The question whether his conduct was honest or dishonest is to be determined by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.

(APPLICATION)

MENS REA DEFENCES ONLY IF RELEVANT IN THE SCENARIO

An appropriation is not regarded as dishonest if he appropriates the property in the genuine belief that he has, in law, the right to deprive the other of it, on behalf of himself or of a third person (s.2(1)(a)).  It is also not dishonest under s.2(1)(b) if he takes the property believing the other would consent; or under s.2(1)(c) if the person to whom the property belongs cannot be discovered by taking reasonable steps.

(APPLICATION)

The second part of the MR is the intention of permanently depriving the other of the property (s.6). This is where he intends to treat the property as his own to dispose of regardless of the real owner’s rights as in Velumyl where D could not have intended to return the exact notes and coins. However conditional intent is not enough (Easom). 

(APPLICATION)  

ROBBERY

The offence of robbery comes under s.8 TA68.

“ A person is guilty of robbery if he steals and immediately before or at the time of stealing and in order to do so, he uses force …. or seeks to put them in fear of being then and there subjected to force ”.

In addition to the AR of theft the AR of robbery requires the use of force or to put or seek to put any person in fear of force.

(APPLICATION)

Any amount of force is sufficient.

(APPLICATION)

Force must be immediately before or at the time of the theft and it must be in order to steal. The cases of Hale and Lockley identified the concept of an “ongoing” theft.

(APPLICATION)

For the MR of robbery it must be proved that the defendant had the MR for theft and intended to use force to steal.

(APPLICATION)

PART B – EXTENDED VERSIONS of Substantive law (crime) – A*

CAUSATION

The chain of causation is the series of links between the unlawful conduct of the defendant and the final result. There must be both factual and legal causation with no breaks in the chain (novus actus interveniens).

Factual causation uses the “but for” test i.e. but for D’s conduct would the result have occurred? (Pagett)

(APPLY FACTUAL)

In this case but for …….

Legal causation requires the Defendant’s conduct to be a more than minimal cause (Kimsey)

Intervening events may break the chain of causation if they are unforeseeable e.g. an ambulance crash. Individual characteristics of the victim will not break the chain due to the thin skull rule (take your victim as you find him) as in Blaue. The victim’s response may break the chain if it is “daft” as in Williams but not if it is reasonable as in Roberts. Actions of third parties like medical staff can break the chain if their actions are seen as sufficiently independent acts to break the chain of causation. Following Cheshire, acts of third parties would only break the chain of causation if D’s conduct can be seen as insignificant.

NON-FATAL OFFENCES

Assault

Assault is defined as conduct which makes the victim apprehend immediate unlawful physical force. ‘Conduct’ may occur through acts (Logdon), or through words (Constanza). Words may also negate an assault (Tuberville v Savage). ‘Apprehension’ requires awareness of the unlawful physical force. “Immediate” means “imminent” i.e. the physical force is “hanging over” the victim (Smith v Woking Police).

(APPLICATION)

The mens rea of assault is to intend or be reckless about making the victim apprehend immediate unlawful physical force (Venna).

(APPLICATION)

Battery

Battery is defined as the application of unlawful physical force. Application can be direct or indirect as in Haystead. It can also be committed by an omission as in Santana-Bermudez. Where D has a lawful excuse such as self-defence (Collins v Wilcock) touching will not be unlawful. Physical force was described in Cole v Turner as the “least touching in anger”. In Collins v Willcock Lord Goff confirmed that “any touching of another person, however slight” may amount to a battery. It can be committed by touching the clothes a person is wearing (Thomas).

(APPLICATION)

The mens rea of battery is to intend or be reckless about applying the force (Venna).

(APPLICATION)

Assault occasioning Actual bodily harm (s.47 OAPA 1861)

Assault occasioning actual bodily harm falls under s.47 of the Offences Against the Person Act 1861. The first element of the actus reus, the assault, is either an assault or a battery.

(APPLICATION)

“Occasioning” means “causing”, so the defendant’s initial assault must be the factual and legal cause of the harm suffered (Roberts).

(APPLICATION)

In Chan-Fook actual bodily harm was defined as anything more than trivial or insignificant, it can be psychological as in Constanza but fear is not enough. In Miller it was defined as ‘anything intended to interfere with the health and comfort of the victim’. As a result it can include minor injuries such as a black eye, it can even include cutting the hair on one’s head (DPP v Smith).

(APPLICATION)

The mens rea for s.47 is the mens rea for the initial assault, not for the harm itself (Savage).

(APPLICATION)

S.20/ S.18 ACTUS REUS

The offences of wounding and grievous bodily harm (GBH) fall under s.20 and s.18 of the Offences Against the Person Act 1861. The actus reus is wounding or causing/inflicting GBH. Wounding requires there to be a break in the layers of the skin. A graze or scratch is insufficient, as is internal bleeding (Eisenhower). For GBH, “grievous” simply means serious (Saunders). This can be physical (Martin), psychological (Burstow), or even biological (Dica).

(APPLICATION)

S.20 MENS REA

The mens rea for s.20 is intention or recklessness about causing some harm (Mowatt). D does not have to intend or foresee serious harm.

(APPLICATION)

S.18 MENS REA

The mens rea of s.18 requires intention to cause grievous bodily harm (Belfon). Intention to wound is insufficient (R v Taylor).

(APPLICATION)

GENERAL DEFENCES

Intoxication

Intoxication applies where, as a result of alcohol or drugs, the defendant does not form the mens rea for the offence.  It is not available merely where his inhibitions are lowered (Kingston), nor where D used intoxication as Dutch courage (A.G. for Northern Ireland v Gallagher).

(APPLICATION – does D lack ability to form mens rea?)

Intoxication may be voluntary or involuntary.  It is voluntary where the defendant has through choice taken the intoxicating substance.  Intoxication is involuntary either where the defendant was unaware he was taking an intoxicant (e.g. a spiked drink), or where taking prescription drugs had an unanticipated effect (Hardie). 

(APPLICATION – voluntary or involuntary?)

If it is voluntary intoxication, the Majewski rules apply i.e. intoxication is available as a defence for crimes of specific intent, but not for crimes of basic intent.  A basic intent offence, e.g. assault or battery, is generally one that can be satisfied with the mens rea of recklessness.  D will still be guilty.  A specific intent crime, for example murder or S18 gbh, is generally one where the mens rea of intention or knowledge is required.  Voluntary intoxication is a defence however where applicable the defendant may be charged with a basic intent offence as in Sheehan and Moore.  Some specific intent crimes (theft/robbery) have no basic intent alternative and therefore an acquittal may be possible if mens rea for the offence couldn’t be formed.

(APPLICATION – if voluntary)

If the intoxication is involuntary, the defendant will be acquitted of both specific and basic intent offences providing D did not form the mens rea (Kingston).

(APPLICATION – if involuntary)

Self-Defence and the Prevention of Crime

S.76 of the Criminal Justice and Immigration Act 2008 provides a complete defence to a person using self-defence or prevention of crime or assisting the arrest of offenders.

Firstly, force must be necessary based on the defendant’s genuine belief as to the facts (confirmed by s.76(3) Criminal Justice and Immigration Act 2008). It does not matter that this belief is mistaken: in Gladstone Williams, Lord Lane stated that the defendant must be “judged against the mistaken facts as he believes them to be. However, s.76(5) upholds the rule in O’Grady that mistaken belief cannot be relied upon where the mistake was induced by intoxication.

(APPLICATION)

Secondly, the defendant may only use reasonable force. Under s.76(6) CIJA2008, the amount of force is not to be regarded as reasonable if it is disproportionate in the circumstances. But under s.76(7), the defendant is not expected to “weigh to a nicety the exact measure of any necessary action”, adopting almost the words identically of Lord Morris in Palmer. In Martin, however, killing an escaping intruder with a shotgun was considered unreasonable force. Further there is no need to retreat (Bird).

(APPLICATION)

Automatism

Automatism is a complete defence that, if successful, will result in acquittal. There are two elements to satisfy. Firstly, there must be an involuntary act. In Bratty, Lord Denning stated that this was limited to reflex actions committed as a result of unconsciousness or convulsions. Secondly, the automatism must result from an external source, for example a blow to the head.

(APPLICATION)

Automatism requires a total loss of voluntary control. It would not therefore be available to a diabetic driving in a hypoglycemic state who showed some control by veering away from other vehicles and braking (Broome v Perkins). Nor is it available where the defendant is responsible for causing his loss of voluntary control as, for example, in the case of Bailey his state of automatism was self-induced because he had failed to control his condition.

(APPLICATION)

Insanity

Insanity makes available the special verdict of “not guilty but insane”. The principles upon which this defence is based were set out in the M’Naghten rules.

(APPLICATION)

Secondly, the defect of reason must be caused by a disease of the mind. This can be caused by a variety of factors, either mental diseases or physical ones that affect the mind. Examples would be epilepsy (Sullivan), hyperglycaemia (Hennessey), and even sleepwalking (Burgess).

(APPLICATION)

Finally, the defect of reason must result in the defendant not knowing either the nature and quality of his act, or that it was wrong. To satisfy this condition he must either be unconscious or have no understanding of the wrongness of his act as a result of his mental condition. In Windle the defendant suffered from a form of insanity, but could not use the defence as there was evidence that he knew his actions were legally wrong.

(APPLICATION)

Duress/Duress of circumstances

Duress by threats

Duress is a defence based on the fact that the D has committed the offence because he has been threatened with death or serious injury. It is a general and complete defence but is not available for murder (Howe) or attempted murder (Gotts).

Firstly, the threat must be accompanied by an order to commit a specified crime. It is not sufficient that the defendant has felt the need to commit a crime to meet a demand for money (Cole).

(APPLICATION)

The threat of violence must be to the defendant or a person for whom he has responsibility or persons for whom the situation makes him responsible.  Threats to family or friends can be a basis for duress, as in Martin and Conway.

(APPLICATION)

The threat must be so great as to overbear the ordinary powers of human resistance. For the defence to be successful, the jury must consider a two-stage test from the case of Graham. Was the D compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death? (subjective test) If so, would a sober person of reasonable firmness, sharing the same characteristics of the accused have responded in the same way? (objective test).

Characteristics that can be taken into account were decided in Bowen and include sex, age, pregnancy and mental illness but not a low IQ. The relevant characteristics must go to the ability to resist pressure and threats.

(APPLICATION)

Duress can only be used as a defence if the D has no “safe avenue of escape” (Gill).

(APPLICATION)

If the source of the threat is an organisation (e.g. a criminal gang or terrorist group) which the D joined voluntarily with the knowledge that threats of this kind might be made (Sharp), D will not normally have a defence. However, if (as in Shepherd) the gang or associate is not normally known for violence the defence may succeed.

(APPLICATION)

Duress of circumstances

The first case in which this was recognised was Willer. It involves D arguing that the cumulative pressure of surrounding circumstances forced them to commit a crime. After decisions such as Conway and Martin it was assumed that this was only a defence to driving offences. However in Pommell (a firearms case) the Court of Appeal stated that it was available for all crimes except murder and attempted murder. (APPLICATION)

ATTEMPTS

S.1(1) Criminal Attempts Act 1981 (CAA 1981) provides that ‘if, with intent to commit an offence …, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.’

S.1(1) is doing ‘an act which is more than merely preparatory to the commission of the offence’. There must be an act. A mere omission cannot suffice. It is a matter for the jury if the defendant is only getting ready to commit the offence (merely preparatory) (Geddes) or is in the process of attempting to commit it (more than merely preparatory)(Toothill).

(APPLICATION) – are D’s acts only preparatory or have they started to commit the offence?

S.1(1) CAA 1981 provides that the mental element for attempt is intention. Both direct as in Mohan and oblique intent. In Whybrow it was held that for attempted murder the prosecution must prove that that the accused intended to kill the victim.

(APPLICATION) – has D got INTENTION to commit all elements of the offence?

Impossibility (if relevant)

(APPLICATION)

MURDER/VOLUNTARY MANSLAUGHTER

The actus reus of murder is the unlawful killing of a human being during the King’s peace. Essentially this requires an act or omission that has caused death.

The mens rea of murder is “malice aforethought, express or implied”. This consists of an intention to kill (express malice), or an intention to cause grievous bodily harm (implied malice) (Vickers/Cunningham). Intention will usually be direct, i.e. the defendant desires the outcome (Mohan). Sometimes, however, the defendant will claim that the outcome was different from the one he desired. In such cases intention can be based upon the defendant’s foresight of the consequences. In Woollin the HL declared that if the consequence was virtually certain and D realised this, then the jury may find that he intended the consequences.

Diminished Responsibility (partial defence to murder)

Diminished Responsibility is a partial defence available on a charge of murder that leads to a conviction for manslaughter. Its elements are stated in s.2 Homicide Act 1957 (amended by s.52 Coroners and Justice Act 2009). Firstly, the defendant must suffer from an abnormality of mental functioning (AMF), the quote from Byrne can be used, that it is a state of mental functioning so different from that of ordinary human beings that a reasonable man would term it abnormal.

(APPLICATION)

S.52(1)(a) says this must arise from a recognised medical condition (RMC), such as chronic depression (Gittens) (You may want to substitute this with Ahulwalia, Smith/English, Reynolds, Speake).

(APPLICATION)

S.52(1)(b) This must substantially impair the defendant’s ability to do one or more of three things under s.52(1A) which are; the ability to understand the nature of his conduct, to form a rational judgment, or to exercise self-control.

(APPLICATION)

The impairment must be substantial, in Egan the CA declared that “substantially” meant more than trivial but less than total impairment.

(APPLICATION)

The above must provide an explanation for the defendant’s acts and omissions in the killing s.52(1)(c). If D was intoxicated at the time of the killing, the jury has to decide whether, ignoring the intoxication, his abnormality substantially impaired his mental responsibility for his acts. (Dietschmann).

(APPLICATION)

FOR NEXT PARAGRAPH, ONLY EXPLAIN AND APPLY IF RELEVANT TO SCENARIO:

Loss of Control (partial defence to murder)

The defence of loss of control is found under s.54(1) of the Coroners and Justice Act 2009 (CJA 2009). A successful plea reduces a verdict of murder to one of guilty of manslaughter.

There are three main elements, firstly D must suffer a loss of control, in Jewell, it was stated that, “Loss of control is considered … to mean a loss of the ability to act in accordance with considered judgement or a loss of normal powers of reasoning”. S.54(2) states that the loss of self-control does not need to be sudden. S.54(4) specifically invalidates the defence where the killing is motivated by a considered desire for revenge. (APPLICATION)

Secondly the loss of control must have had a qualifying trigger, under s.55(5) CJA 2009 the qualifying trigger can be fear or anger. The fear trigger is where the defendant lost self-control due to fear of serious violence from the victim against either themselves or another identified person. (Lodge/Ward)

(APPLICATION)

(FOR NEXT PARAGRAPH ONLY EXPLAIN AND APPLY RESTRICTIONS THAT ARE RELEVANT)

Under s.55(6) there are three important restrictions on the availability of these qualifying triggers.

Firstly, under s.55(6)(a), D’s fear of serious violence is to be disregarded if D incited something to be done or said to provide him with the excuse to use violence. Secondly, s.55(6)(b) makes the same point if D incited a thing to be done or said that caused in him a sense of being seriously wronged. Thirdly, under s.55(6)(c), anything said or done in connection with sexual infidelity is to be disregarded. In Clinton where other factors count as a qualifying trigger, sexual infidelity may be taken into account in assessing whether things done or said amounted to circumstance of an extremely grave character and gave D a justifiable sense of being seriously wronged.

(APPLICATION)

Third is the objectivity test which requires that someone of the same age and sex as the defendant, with a normal degree of tolerance and self-restraint and in the same circumstances as the defendant, might have reacted in the same or a similar way. Only the age and sex of the defendant may be taken into account, along with the circumstances of the defendant, which do not bear on the defendant’s “general capacity for tolerance and self-restraint” (s.54(3)). The circumstances to be considered are depression, epilepsy, unemployment, past abuse and possibly sexual infidelity (Clinton/Gregson/Hill), the jury will not consider short temper (Mohammed).

(APPLICATION)

INVOLUNTARY MANSLAUGHTER

Unlawful Act Manslaughter

Unlawful act manslaughter occurs when the defendant commits a dangerous, unlawful act which causes the death of the victim. Firstly, the defendant must commit a criminal act, a civil wrong is not enough (Franklin) further the actus reus of the criminal act must be satisfied (Arobieke). An omission is not sufficient. (APPLICATION)

(APPLICATION)

Thirdly, the unlawful act must be the cause of the death. D will escape liability for manslaughter where the chain of causation cannot be established (Watson). It does not have to be directed at the victim (Mitchell) and it does not need to be directed at a person (Goodfellow).

(APPLICATION)

The defendant must be shown to have had the mens rea required for the unlawful act upon which his liability is based (Lamb).

(APPLICATION)

Gross Negligence Manslaughter

The actus reus of gross negligence manslaughter is the same as for any homicide offence, i.e. the unlawful killing of a human being.

According to Lord Mackay in Adomako, D must owe a duty of care to his victim. Such a duty exists between the owner of an outdoor pursuit’s centre and his customers (Kite), and between a lorry driver and his passengers (Wacker).

(APPLICATION) – is there a duty owed and if so why?

Secondly there must be a breach of this duty: D must fall below the standards of the reasonable man. This is an objective test taking into account the relevant risk factors.

(APPLICATION) – Who is D compared to? What are the relevant risk factors? Have they fallen below the standard expected?

D’s negligence must be the factual and legal cause of death.

(APPLICATION) – but for test, any possible breaks in chain?

Thirdly, the degree of negligence shown by the defendant has to be “gross”. In Andrews the HL referred to the need for “a very high degree of negligence”. In Adomako Lord Mackay referred to the conduct of the defendant being “so bad in all the circumstances as to amount to a criminal act or omission.” and Bateman described this as showing a disregard for the life and safety of others.

(APPLICATION)

Finally, in Adomako Lord Mackay referred to the need for a “risk of death”.

(APPLICATION)

THEFT

S.1 of the Theft Act 1968 (TA 68) states; A person is guilty of theft if they “dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it.”

S.3 TA 68 deals with the meaning of “appropriate”.  According to s.3(1) “a person appropriates property the moment s/he assumes any of the rights of the true owner”.  These rights could include selling, possessing, consuming or lending.  An appropriation can occur despite the consent of the owner as in Lawrence, Gomez and Hinks.

(APPLICATION)

S.4(1) TA 68 defines “property” as ‘money and all other property, real and personal, including things in action and other intangible property’. 

(APPLICATION)

Only explain and apply relevant issues from below i.e. if there is no issue with something growing wild don’t explain it.

Under s.4(2) land is a separate category and there are only three circumstances in which land can be stolen.  These are a) where a person is dealing with land in a special capacity; b) where a person not in possession of land severs something from it; and c) where a person in possession of land as a tenant appropriates a structure or fixture let with the land.  Under s.4(3) if something is growing wild it would be theft to take the whole plant or any for commercial purposes.  Under s.4(4) it is not theft to take live or dead wild animals unless they have already been taken into possession by someone else.  Information cannot be stolen (Oxford v. Moss).

(APPLICATION)

Only explain and apply relevant issues from below

Property will also be regarded as “belonging to another” under a trust where the property belongs to the beneficiaries (s.5(2)).  Also under s.5(3) where there is an obligation to deal.  This is when property is received from another under an obligation to retain and deal with it in a particular way as in Klineberg & Marsden 1999 but not Hall. 

Where property is received as a result of a mistake (e.g. overpayment of wages) there is a legal obligation to make restoration, as in AG’s Reference (No1 1983). 

Where property is lost it remains property belonging to another. Where a person abandons property then the property is not belonging to another as the rights of ownership have been relinquished.  Property donated to charity is not abandoned, the items remain the property of the donor until it is taken into possession by the charity, when in the charities possession it is then the property of the charity (Ricketts v Basildon Magistrates).

(APPLICATION)

Only explain and apply relevant issues from this paragraph. An appropriation is not regarded as dishonest if he appropriates the property in the genuine belief that he has, in law, the right to deprive the other of it, on behalf of himself or of a third person (s.2(1)(a)).  It is also not dishonest under s.2(1)(b) if he takes the property believing the other would consent; or under s.2(1)(c) if the person to whom the property belongs cannot be discovered by taking reasonable steps.

(APPLICATION)

D must appropriate the property dishonestly (s.2).  The Ghosh test for dishonesty appears to have been rejected in Ivey v Genting Casinos, the new approach suggested to apply across both criminal and civil law is:

1.  What was the actual state of the individual’s knowledge or belief as to the facts? This must be genuinely held but doesn’t have to be reasonable (subjective).

(APPLICATION)

The second part of the MR is the intention of permanently depriving the other of the property (s.6). This is where D intends to treat the property as his own to dispose of regardless of the real owner’s rights as in Velumyl where D could not have intended to return the exact notes and coins. However conditional intent is not enough (Easom). 

(APPLICATION)  

ROBBERY

The offence of robbery comes under s.8 TA 68.

In addition to the AR of theft the AR of robbery requires the use of force or to put or seek to put any person in fear of force. There are two conditions on the force. Firstly, it must be immediately before or at the time of the theft and, secondly, it must be in order to steal. Any amount of force is sufficient e.g. pushing, tugging at a bag that V is holding.

(APPLICATION)

The cases of Hale and Lockley identified the concept of an “ongoing” theft.

(APPLICATION)

For the MR of robbery it must be proved that the defendant had the MR for theft and intended to use force to steal.

(APPLICATION)

Where force is used to steal, then the moment the theft is complete there is a robbery as in Corcoran v Anderton.

(APPLICATION)

PART C – NON-SUBSTANTIVE LAW (ENGLISH LEGAL SYSTEM) TOPICS – these will appear in Q6 (as an EXPLAIN question for 5 marks) and Q11 (as an “ASSESS” question for 7 marks)

STATUTORY INTERPRETATION

Explain the literal rule of Statutory Interpretation.

The literal rule requires judges to give the ordinary, or plain meaning of the words in the law. Judges use the Oxford English Dictionary from the year the Act was passed, so there is no dispute over the definition of the word, even if the meaning has changed over time. This can lead to absurd outcomes which contradict Parliament’s intentions.

In DPP v Cheeseman, the defendant was charged after police caught him committing an indecent offence in a public bathroom. He was charged under section 28 of the Town Police Clauses Act 1847. The word in dispute during the case was ‘passengers’. The dictionary definition from 1847 stated that a passenger was a passer-by or a traveller. Applied to a public lavatory this was taken to mean anyone resorting in the ordinary way to a place for one of the purposes for which people would normally resort to it. As a result the police officers were not ‘passengers’ as they were stationed there to apprehend persons committing acts such as Cheeseman and therefore the defendant was not guilty.

Explain the golden rule of Statutory Interpretation.

The golden rule is a modification of the literal rule. If using the literal rule produces an absurdity, then the court should look for another meaning of the words to avoid that absurd result (Grey v Pearson).

The narrow application is when the word has more than one meaning the least absurd should be used. In Allen, the defendant was accused of bigamy, defined as someone who shall marry any other person. The defence argued that the second marriage was not legally valid as you cannot marry someone who is already married. This would have meant because no bigamous marriage is lawful that bigamy is impossible. Therefore, the judge used the golden rule to decide that marry means to go through with a ceremony of marriage.

Wider application is when the plain meaning of the text is unambiguous but to apply it would lead to a repugnant situation. In Re Sigsworth a son had murdered his mother. She had left no will so under the rules of intestacy her estate would be inherited by her next of kin, her son. The golden rule was used to prevent repugnant situation of the son inheriting.

Explain the mischief rule of Statutory Interpretation.

The mischief rule was established in Heydon’s Case, under the mischief rule the court will interpret the law in a way which suppresses the problem ‘mischief’ the Act was aimed to solve. In order to do this the court will look to ‘4 corners’, they will ask:

1. What was the common law before making the Act?

2. What was the mischief/defect that the common law did not provide a solution to?

3. What was the remedy (Act) that Parliament passed to cure the problem?

4. What was the true reason for the remedy (Act)?

In Smith v Hughes the Street Offences Act 1959 made it an offence for a ‘common prostitute to solicit or loiter in the street or a public place’, the defendants in question were calling to men on the street from a balcony and open downstairs windows of a private building. Lord Parker said the Act was introduced so that people could walk along the streets without being solicited by prostitutes therefore it did not matter if the prostitute was stood in the street, they were guilty as they were molesting people on the street.

Explain the purposive approach to statutory interpretation.

The purposive approach focuses on what Parliament intended when passing the new law. It has been adopted to comply with an EU method of interpreting laws. The preference for the purposive approach was extended to UK legislation by the House of Lords in Pepper v Hart.

In Jones v Tower Boot Co a black employee had been racially abused whilst at work but the company argued that these acts were not within the “course of employment” of the abusive employee’s (as racial abuse is not part of their job) and therefore the company could not be held liable under s.32 of the Race Relations Act 1976. However, the Court of Appeal decided that Parliament’s intention when passing the Act was to eliminate discrimination in the workplace and therefore this required a wide interpretation of the selected phrase.

Assess the value of (discuss the advantages and disadvantages) the literal rule of interpretation.

The literal rule creates certainty, it is easy to use, we can all agree on dictionary meanings, this should reduce the quantity of litigation as there is no need for test cases, lawyers can accurately advise their clients on the likely outcome of the law. It also respects the theory of the ‘separation of powers’, Parliament is our law-making body, judges are supposed to apply the law, they are not elected so it is not for them to change words within the law and become ‘law makers’.

The literal rule is unrealistic as it assumes every Act will be perfectly drafted and will cover every situation that Parliament mean it to but Whiteley v Chappell shows us this is not the case. Further words can have more than one meaning, dictionaries contain several different meanings for one word, this was seen when trying to interpret the word ‘type’ under the Dangerous Dogs Act 1991. Both of which means that using the literal rule can lead to unfair decisions such as London & North Eastern Railway Co v Berriman.

Assess the value of (discuss the advantages and disadvantages) the mischief rule.

The mischief rule gets beyond the wording and applies the ‘spirit’ of the Act giving effect to the will of Parliament, which can save Parliament time if the courts correctly apply the ‘intention of Parliament’. It is flexible so can avoid absurd decisions resulting from the use of the literal rule (Whiteley v Chappell). Further it acknowledges the need to take into account recent developments such as medical advancements (Royal College of Nursing v DHSS).

However the mischief rule could promote judicial law making, it is not the role of unelected judges to make the law and therefore this approach does not respect the theory of the separation of powers. It leads to uncertainty as it is difficult to know when judges will use the mischief rule and what outcome this may result in. It promotes the use of external aids which may not be reliable such as Hansard and it can only be used if there is a gap in the old law so it is not as broad as the purposive approach.

Assess the value of (discuss the advantages and disadvantages) the purposive approach.

The purposive approach has several advantages. The first is that it is flexible and as a result can avoid the injustice of a literal interpretation and can promote fairness. Secondly it can try to get beyond the wording and apply “spirit” of the Act giving effect to the will of Parliament. This may save Parliament time if the courts correctly apply the “intention of Parliament”. This approach also acknowledges the need to take into account recent developments e.g. science/technology as in DHSS v. Royal College of Nursing. In addition, it promotes consistency within our courts approach to interpretation and that in other EU countries. This is fair as it ensures that citizens in each country are treated in the same way.

Disadvantages of this approach is that it makes use of external aids which are not always reliable i.e. Hansard can be taken out of context and Law Commission reports appear several years before the Act is passed. It can easily lead to judges “making law” i.e. changing words/phrases in Acts of Parliament. This is a direct contradiction of the theory of separation of powers as judges are unelected and unaccountable to the public. They may misinterpret Parliament’s intention which would then require Parliament to act again to overrule the courts. Finally, inconsistency in decisions can lead to complaints about legal advice and undermine faith in the justice system.

Assess the value of (discuss the advantages and disadvantages) of the golden rule.

The golden rule can avoid absurdities as illustrated by Allen. In this case if the literal rule had been used it could have meant because no bigamous marriage is lawful that bigamy is impossible. Therefore, the judge used the golden rule.

The golden rule can help avoid repugnant outcomes. In Re Sigsworth a son had murdered his mother. She had left no will so her estate would be inherited by her next of kin, her son. The golden rule was used to prevent the repugnant situation of the son inheriting.

Use of the rule respects Parliamentary Sovereignty, arguable more than the literal approach, because the exact words are adhered to except in limited situations. The only assumption is that Parliament never intends to pass absurd law which is quite reasonable.

However, the rule allows for judicial law making which can be argued is undemocratic as it gives power to decide to unelected judges. Professor Zander argues the rule ‘cannot be regarded as a sound basis for judicial decision-making’, and describes it as ‘a feeble parachute’.

The rule can be criticised as it lacks a definition of what is absurd or repugnant? This can make the law uncertain which in turn makes legal advice difficult and increases litigation. This was highlighted by the Law Commission's Report on Interpretation of Statutes 1969 which also said the rule is a less explicit form of the mischief rule.

Explain intrinsic (internal) and extrinsic (external) aids.

Intrinsic aids are those within the Act being interpreted. Some Acts have an interpretation section where key words which appear in the Act are defined. For example, the Theft Act 1968 provides definitions of all elements of offence and how to interpret definitions e.g. ‘property’ includes money.

Since the 19^th Century Acts can have a long title which gives a plain “guide to general objectives of a statute” (Lord Simon). For example, the Christmas Day Trading Act 2004’s long title is: “An Act to prohibit the opening of large shops on Christmas Day and to restrict .... Such shops on Christmas Day”. It is clear that the aim of Act is to stop large shops trading on Christmas Day.

In addition to the main body of the text schedules can also be consulted. In some cases it is absolutely necessary for example the Hunting Act 2004 states; “Hunting is exempt if it is within a class specified in Schedule 1.”

Extrinsic aids are those found outside the Act of Parliament being interpreted.

Hansard is a record of official debates in Parliament. The use of Hansard has been controversial. Eventually in Pepper v Hart 1993 the use of Hansard was allowed providing:

The statement is by the minister promoting the Bill or another promoter, and it

Must clearly disclose the mischief aimed at or intention lying behind the ambiguous or obscure words

Whereas Hansard is referred to when using the mischief rule, judges using the literal rule will refer to a dictionary. A Dictionary was used in DPP v Cheeseman to find the literal meaning of the word passenger.

The Interpretation Act 1978 can also be referred to when using the literal rule, it provides general guidance to interpretation of common terms. For example, words importing the masculine gender should be construed to incorporate the feminine and vice versa, and words in the singular include the plural.

JUDICIAL PRECEDENT

Explain ratio decidendi and obiter dicta

Judicial Precedent is the process where judges follow decisions made in previous cases. Three things are required for judicial precedent to operate. The first is to discover the ratio decidendi (the reason for the decision) of previous cases. This forms the rule of law that is binding upon judges in later cases. For example, the ratio decidendi in Howe is that the defence of duress is not available to a person charged with murder. This must be followed in future cases. Other points made by judges are the obiter dicta (things said by the way). These are not binding upon later judges. They are merely persuasive. In Howe, the HL declared that duress is not available for a person charged with attempted murder. Since Howe was not actually concerned with attempted murder, these remarks were obiter dicta.

Explain the court hierarchy

Judicial precedent operates within the hierarchy of the courts. Lower courts are bound by decisions of the higher courts. The Supreme Court is the highest court in the UK structure and binds all other courts, it also binds itself unless it uses the 1966 Practice Statement. The Court of Appeal has to follow the decisions of the Supreme Court, each division is bound by its own decision unless one of the rules in Young v Bristol Aeroplanes apply, its decisions bind the High Court, and the inferior courts (Crown, Magistrates and County). The High Court also binds the inferior courts but is not bound by its own decisions.

Explain the use of Law reports

Law reports contain details of the facts of the case, the judge’s decision and, most importantly, the reasons for that decision (the ratio decidendi), these are essential so that judges can find binding precedent they must follow. Since 1865 law reports have been published under the control of the Incorporated Council of Law Reporting which has laid down rules for the reporting of law reports, for instance, the judgment is reported exactly as the words were stated in court by the judge, as the precise words are extremely important. Law reports must be written by a qualified lawyer with rights of audience in the court the case was heard and the law report must be approved by the Judge. Examples are the Weekly Law Reports, and the All England Reports.

Explain how judges can avoid following existing precedents.

Judges have ways of avoiding precedents where they feel that following them would be unjust. These allow judges to be flexible and creative in their role. The first is by distinguishing (identifying differences in) the facts of the case from those contained in the case setting the precedent. For example, in Balfour v Balfour a husband and wife made a verbal agreement about the payment of maintenance. The court decided that this was merely a domestic arrangement rather than a legally enforceable contract, as there was an assumption that there was no intention to create legal relations. However, in Merritt v Merritt a husband and wife were separated when they made a written agreement about the payment of a mortgage. The court decided that the facts were distinguishable from those in Balfour v Balfour: the couple were separated, and the agreement was in writing. It therefore concluded that they had intended to be legally bound, therefore their agreement was a legally enforceable contract. Both precedents remain in use.

Secondly a court may decide that an existing ratio decidendi is wrong. As long as it has the power to do so, the court will overrule this precedent and set a new precedent to be followed in later cases. For example in Addie v Dumbreck, the HL decided that there is no general duty of care to trespassers. However, a few years later in British Railways Board v Herrington, a six-year-old boy was burned while playing on a live railway line. The House of Lords decided to use the power given to them in the 1966 Practice Statement to avoid their own binding decision of Addie v Dumbreck and change the law. The new ratio was that an occupier can owe a duty of care to trespassers. It reached this decision because social and physical conditions, including the growth of towns and the lack of play areas for children, had changed so much since the time of Addie v Dumbreck. This means that Addie v Dumbreck will no longer be followed.

Explain how the Supreme Court (House of Lords) and the Court of Appeal can avoid following a precedent.

The final court of appeal within the English legal system is the Supreme Court (House of Lords). Its decisions are binding on all other courts. Until 1966 it was bound by its own previous decisions. However, in that year the House of Lords issued a Practice Statement giving itself the power to depart from its own previous decisions “when it appears right to do so”.

For example, in Caldwell v MPC, Caldwell had set fire to a room in a hotel. He was convicted of criminal damage and endangering life. The House of Lords decided that he was guilty as long as the risk was obvious: it did not matter that he had not seen the risk himself (an objective test). However, in G and R, two young boys had set fire to a wheelie bin. The flames had spread and a lot of damage. The boys had not seen the risk of the fire spreading. The House of Lords decided that they were not guilty: from now on a person can only be guilty of criminal damage if he actually saw the risk of damage himself (a subjective test).

The Court of Appeal is always bound by the decisions of the House of Lords. Also, it is normally bound by its own earlier decisions. However, Young v Bristol Aeroplanes outline three occasions where it can overrule its own previous decisions:

the previous CA decision was made per incuriam (through lack of care)

there are conflicting past decisions of the CA. In Parmenter, the court had to decide whether to follow the decision of Spratt or Savage.

there is a later HL decision effectively overruling their earlier decision.

In addition the criminal division of the Court of Appeal can overrule its own previous decisions if it feels that the law had been misapplied or misunderstood and that following it would result in a person suffering serious injustice, such as imprisonment (Taylor).

Assess the value of (discuss advantages and disadvantages) of judicial precedent.

Under judicial precedent judges follow points of law decided in previous cases. This provides certainty in the law, as like case are treated alike. By looking at existing precedents it is possible to predict what a decision will be and plan accordingly. This makes it easier for solicitors to advise clients. It also enables people to operate their businesses knowing that the arrangements they make are recognised by the law. Although the House of Lords’ Practice Statement allows for change, it still recognises the need for certainty in the law. In R v Jones ex parte Sec of State they refused to overrule a previous precedent despite disagreeing with it.

On the other hand, judicial precedent is also flexible. There are a number of ways to avoid precedent, for example by distinguishing (Merritt) and overruling (R v R), and this enables the system to change and to adapt to new situations. Also the Supreme Court, as the final court of appeal, has the power to overrule its own decisions, as it did in BRB v Herrington where it ruled that occupiers of land owe a duty of care to trespassers. This can ensure justice in individual cases.

However, precedent can be too rigid and this can lead to injustice. Once the Supreme Court sets an unfair precedent it cannot be overruled unless and until another case of similar fact goes to the Supreme Court of appeal which may not happen for years. From the 1960s the courts had disapproved of a decision that builders did not owe a duty to the people that bought properties from them but it took until 1978 in Batty v Metropolitan Property Realisations Ltd for the law to be changed and as we have already heard the Supreme Court are reluctant to overrule previous decisions as it values certainty.

Secondly, precedent is retrospective (backward looking). In other words people can be found guilty of criminal offences for doing something which was not a crime at the time. This occurred in R v R: at the time the defendant tried to force his wife to have sex without her consent, a man could not be guilty of raping his wife. Nevertheless, he was found guilty. Although the decision is probably right, it seems wrong to change the law after the event. It would perhaps be fairer if the change in the law applied only to future cases.

JURIES

Explain the role of a jury in a crown court trial

In the crown court a jury of 12 people, aged between 18 and 75, sit in judgment on those charged with serious criminal offences. These offences are either indictable only ones, such as murder, armed robbery, rape and manslaughter, or either-way offences such as theft, criminal damage and assault occasioning actual bodily harm. The role of the jury is to decide the verdict of either guilty or not guilty. To enable them to do this they must listen carefully to the case of both the prosecution and the defence, and then to the summing up of the judge. The judge will summarise the main facts of the case and explain the relevant law. During the trial the jury are allowed to make notes. If they have a question they can ask the judge by passing a note to the usher. The jury will then retire to a private room to consider their verdict. Their discussions within this room are secret. If they are unable to reach a unanimous decision, then after 2 hours they can obtain the permission of the judge to reach a majority decision of either 11-1 or 10-2. They have to be sure, beyond reasonable doubt, before they can find the defendant guilty. They then choose their own foreman to announce their verdict in court. Once that has been done, their role is over. Jurors are forbidden by the Contempt of Court Act 1981 to carry out their own research during their deliberations and from making public what has been said in the jury room.

Assess the value of (discuss advantages and disadvantages) of jury trial. 7 marks as part of Q11. Select 3 points from below ensuring a mixture of advantages and disadvantages,

Jury trial has come under close scrutiny in recent years, with many people proposing to limit its availability. However, there are those, particularly in the legal profession, who argue strongly in favour of keeping it. They argue that it has public confidence. Indeed, Lord Devlin said that it is the “lamp that shows that freedom lives”. They believe that a defendant charged with a serious criminal offence has the right to be tried by his peers.

They also argue that a jury will exercise common sense rather than simply following the letter of the law. This is known as jury equity. This can be illustrated in the case of Clive Ponting, a civil servant who had released information about the sinking of an Argentinian ship at the start of the Falklands War in 1982. The judge directed the jury that Clive Ponting had no defence. However, the jury found him “not guilty”, possibly because they believed that the public had a right to the information.

In addition it is argued that the secrecy of the jury room is a protection. As the jury does not have to give any reasons for its decision, or to announce who voted guilty or not guilty, individual jurors are unlikely to be targeted afterwards by friends of the convicted person. However, secrecy can be a disadvantage. In Young, the jury decided to use an ouija board to find the defendant was guilty of murder. Luckily one of the jury later spoke out; otherwise an innocent might have ended up serving a life sentence.

There are also many difficulties with jury trial. One is that a jury will have difficulty in understanding complex cases. This is particularly true for serious fraud cases. For example the directors of Guinness, the brewing company, were convicted of fraud after a lengthy trial dealing with complicated accounting procedures. Even experts found this material difficult to understand. It is for this reason that there have been frequent proposals to get rid of trial by jury for serious fraud cases.

Secondly, jury equity can lead to so-called perverse decisions, as in the case of Randle and Pottle. The two defendants were found not guilty of helping the convicted spy, George Blake, escape from prison, even though they had confessed to the crime in a book they had written. The jury possibly felt that the case should not have been brought as over twenty years had passed between their offence and the trial.

Media influence can also promote a lack of confidence in jury trial. In Taylor and Taylor 1993 two sisters were charged with murder. Some newspapers published still photos taken from a video which gave a false impression of what was happening. After the jury convicted the judge gave leave to appeal because of the possible influence the picture could have had on the jury’s verdict. The Court of Appeal quashed the convictions.

Overall jury trials do have value as, despite some recent reforms, the system of trial by peers has remained since 1215.

LEGAL PERSONNEL

Explain the role of a solicitor

Solicitors are considered general practitioners of the law and the majority of their work involves providing legal advice and document preparation. They can work in private practice or employed by organisations such as the Crown Prosecution Service. Most of solicitors’ work comes from conveyancing, drawing up wills, drafting contracts, writing letters and family and matrimonial work. Solicitors do almost all advocacy in the Magistrates’ Court, but have also developed full rights of audience since the Access to Justice Act 1999, subject to accreditation under the Quality Assurance Scheme for Advocates.

Explain the role of a legal executive

The day-to-day role of a legal executive is similar to that of a solicitor. Their work varies according to specialism but typical duties include: litigation; assisting solicitors; giving legal advice; researching and preparing cases; writing legal documents; High Court or county court work; dealing with legal matters such as writing wills, property conveyancing, custody cases and divorce settlements.

Explain the role of a barrister

Barristers are usually self-employed, although they share chambers with other barristers and share a clerk. Barristers are considered advocacy specialists i.e. presenting cases in court. They work under the cab rank rule - this means that a barrister cannot turn down a case within their specialism. Barristers have rights of audience in all criminal courts, subject to accreditation under the Quality Assurance Scheme for Advocates. Barristers’ work also includes advising solicitors on a cases chance of success and negotiating settlements.

Explain how solicitors are regulated

Solicitors are regulated by the Solicitors Regulation Authority whose purpose is to protect the public by ensuring solicitors meet high standards and acting when risks are identified.

They make sure that solicitors adhere to the principles set out in the Authority’s Code of Conduct.

It has the power to fine up to £2 000, issue a written reprimand, close a firm, and prosecute in the Solicitors’ Disciplinary Tribunal which has the power to suspend a solicitor from practise or strike off a solicitor from the Roll of Solicitors.

Explain how legal executives are regulated

CILEx Regulation sets standards and rules which all legal executives must follow. The CILEx code of conduct sets out the standards of behaviour that you should expect when they are carrying out their professional work and in their general behaviour. These include: upholding the rule of law and the impartial administration of justice; maintaining high standards of professional and personal conduct and justify public trust in you, your profession and the provision of legal services; behaving with honesty and integrity and protecting client money and assets.

Explain how barristers are regulated

Barristers are regulated by the Bar Standards Board whose purpose is to regulate barristers and their professional practice. They make sure that barristers adhere to the principles set out in the Board’s Code of Conduct and can discipline any breaches of the Code. If the matter needs to be referred to the Disciplinary Tribunal It has the power to fine up to £50 000, issue a written reprimand, make the barrister complete further development training, suspend the barrister for up to 12 months from practise or disbar the barrister.

JUDICIARY

Explain the role of a judge in a Crown Court trial

In England and Wales, Crown Courts are where serious criminal cases (indictable and some triable either way) are heard by a judge and jury. In those cases, the judge makes decisions about the law and manages the trial. The jury considers the evidence, and decides whether the person on trial is guilty or innocent.

Throughout the trial, the judge makes sure that the jury is aware of its legal role, and what it should and shouldn’t do so that the court case stays within the law. If a point of law is being discussed the Judge will ask the jury to leave temporarily. The Judge will give the jury directions regarding the law and evidence raised, reminding them how much weight can be given to certain types of evidence. As previously mentioned, the Judge is likely to make lengthy notes during the trial and use these for their summing up which is the final stage before jury deliberations begin. The Judge will initially request that the jury reach a unanimous decision but after two hours have passed they may invite a majority verdict with no fewer than 10 in agreement.

If the jury return a guilty verdict then a sentencing hearing will be as previously described.

Judges in the Crown court can also hear appeals against sentence and/or conviction from the Magistrates’ Court. They will form a panel with 2-4 magistrates and can confirm, reverse of vary any part of the original decision.

Judges also deal with plea and case management hearings where a case has been sent from the Magistrates’ Court the defendant can change their plea to guilty. Judges also conduct sentencing hearings for cases that were heard in the Magistrates’ Court but where their sentencing powers are insufficient.

PART D – Theory and concepts

FAULT

Examine the meaning and significance of ‘fault’ as a basis for liability in English law

Fault can be defined as blameworthiness, responsibility or wrongdoing. In Sweet v. Parsley and B v. DPP the House of Lords (now Supreme Court) re-iterated their view that there is a presumption of “no liability without proof of fault” and that this is even stronger in criminal law, especially where the offence is “truly criminal” (Gammon guidelines). As such Parliament are reminded that they must be explicit about lack of mens rea when creating a strict liability offence.

Some areas of criminal law demonstrate that fault is very significant as a basis for criminal liability. The existence of defences, both complete and partial, supports this. Intoxication is a good example since this can be complete defence when involuntary e.g. Hardie and therefore as D is considered blameless they are found not guilty. Where intoxication is voluntary it can be a partial defence if D is charged with a specific intent crime but they were unable to form MR e.g. Sheehan + Moore. This is because they are partially to blame as they committed the AR and were at least reckless in terms of becoming intoxicated. However if D is charged with a basic intent crime voluntary intoxication is no defence since they were sufficiently blameworthy when becoming intoxicated e.g. Majewski. However there are some exceptions e.g. duress is not a defence to murder (Howe) despite the argument that D is less blameworthy than a cold-blooded killer.

Other areas of criminal law demonstrate that fault is far less significant in relation to criminal liability. Strict liability offences support this point. In many situations D may have tried their very best to prevent the situation or there may have been nothing that could possibly have been done. As a result they are not at fault but could be found liable despite this. In Shah the shopkeeper did everything in his power to prevent a lottery ticket being sold to someone underage and in Smedleys v. Breed very little else could practically have been done when a caterpillar was found in one tin of peas (out of a million).

There are arguments in favour of non-fault based liability. Often the interests of the public are given priority over those of an individual. Consider strict liability offences where public interests such as the prevention of pollution (Alphacell v Woodward), food hygiene (Smedleys v Breed) and the welfare of young children (Harrow LBC v Shah) are given precedence over the interests of apparently innocent offenders. In addition making it difficult to raise any defence can act as a deterrent when operating high risk businesses.

However it could be considered unjust to impose criminal liability without proof of fault. It is indefensible to hold people liable for the unforeseen, or even unforeseeable, consequences of their actions. Consider Storkwain, where the convicted man was a victim themselves of fraud. Also, criminal convictions carry lasting consequences and should not be used merely to defend others’ interests or to provide a remedy for victims.

JUSTICE

Examine the relationship between legal rules and justice.

In ordinary terms the word “justice” simply means fairness. If something is unjust then it is unfair. Features include being impartial, punishment being equal to the crime and treating like cases in a like manner. Procedural justice is where systems are put in place in an attempt to ensure justice by providing a framework in which all should be equal before the law whereas substantive justice looks at the outcome.

Jeremy Bentham developed the theory of utilitarianism whereby the fundamental object of justice is the maximisation of human happiness. If an event increases happiness it was considered just, this ignores the rights of the individual. John Rawls wrote about social justice, he argued two basic principles of justice, firstly that every person must have an equal right to the most basic liberties, for example, freedom of thought, speech and assembly. Secondly, there should be equality of opportunity; inequalities may exist where it benefits the least advantaged members of society and provided that all offices and positions are open to everyone.

Jury trials would be seen as just according to Bentham, as if 12 randomly selected members of the public with no connection to the case unanimously agree on a verdict, they should represent society’s views, the public should be happy with their outcome, as most people agree with the outcome then this adds to the overall sum of happiness. The same is true with jury equity, where juries make their decision not based on the law but on their own idea of justice, as illustrated in Ponting. However, there have been reported cases of racism among the jury when the trial was allowed to continue (Gregory v UK), this is unjust as the defendant is not having a fair trial free from personal bias and this may lead to an unjust outcome.

The principle of causation is based on justice, as the defendant will be responsible for results that they remain the substantial and operating cause of. However, the thin skull rule (Blaue) could lead to injustice as a person can be found guilty of a more serious crime than they anticipated, therefore the punishment is not equal to the crime. Due to the decisions in Cunningham and Cheshire, it is possible to be found guilty of murder without having intended to kill and where your victim has received extremely poor medical treatment that has contributed to their death. However, this could be argued as achieving justice for the victim and their family, Bentham would therefore argue it is just.

RULES AND THEORY IN CRIMINAL LAW

How do the courts decide whether conduct should be criminalised?

The courts will consider a number of FACTORS including:

Harm

We expect that everyone has the right to be free from harm. Harm can take many forms, firstly, physical harm to individuals e.g. murder, manslaughter, GBH. Secondly harm to the victim via property e.g. theft, robbery, burglary. Thirdly, harm to the wider community e.g. issues with pollution, food safety. Fourthly, risk of harm to the public e.g. public order and anti-terrorism offences. Finally to protect us from harming ourselves e.g. drugs laws and restriction on defence of consent (Brown and others).

Autonomy

Generally, individuals should have the freedom to do what they want, where they want and when they want. The law will limit this where it is necessary to limit harm to others (Brown).

But autonomy also means that individuals should be treated as responsible for their own behaviour (see fault).

Criminal law aims to protect those considered less than competent in their ability to make choices such as:

Under 18

Those suffering a mental disorder

So it is illegal to assist another to commit suicide because you are influencing someone else’s choice whereas it is not illegal to commit/attempt suicide as that is your own choice.

Fault

It is generally presumed that defendants are responsible for their own actions and the consequences of their actions and therefore they will be held accountable for their conduct.

There are some situations when a person is not wholly or partly to blame for the consequences of his or her actions and therefore are not liable to prosecution/have a defence:

Children under the age of criminal responsibility (10)

Someone did not have the guilty mind of the offence e.g. mistake

Someone did have the guilty mind but they are not to be blamed because they were defending themselves or another, or they were acting under duress.

If someone is acting involuntarily e.g. pushed by another person.

However consider strict liability where a person may do everything in their power to prevent harm but still be guilty e.g. Shah.

Individual responsibility

People are only convicted of crimes unless they have individual criminal liability. This means they will not be convicted of a crime committed by another, unless they contributed to the crime in some way.

The courts will also consider a number of PRINCIPLES in formulating rules of criminal law:

Fair labelling

The offence a person is convicted must correctly describe the kind of crime that has been committed due to the moral stigma attached and to distinguish it from other offences.

This is why murder, voluntary manslaughter and involuntary manslaughter are named differently. A person can be convicted of actual bodily harm or grievous bodily harm.

But the mens rea of murder does not require intention to kill.

Correspondence

This is linked with fair labelling. This principle states that the actus reus and the mens rea should correspond, if they do not the accused should not exceed the harm actually encompassed by his or her own mens rea.

However, there are many offences that don’t adhere to this e.g. murder only requires intention to cause GBH, unlawful act manslaughter doesn’t require death to be foreseen nor intended, s.47 doesn’t require harm to be foreseen and s.20 doesn’t require serious harm to be foreseen.

Maximum certainty

This relates to the fact that a person should not be convicted of a crime if the elements that constitute a crime are not known. Generally, in England and Wales the elements of a crime are clear but in some countries a crime can be ‘bringing the state into disrepute’.

Misra challenged their convictions for gross negligence manslaughter on the basis the elements were too uncertain but their challenge was rejected.

In DPP v Shaw and R v R the offences were uncertain until the decision by the House of Lords.

No retrospective liability

Article 7(1) of the European Convention on Human Rights states:

‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.’

An Act of Parliament is not intended to have retrospective effect, it should only apply to future conduct. One example which did was the War Crimes Act 1991 which provided that if a person was a British citizen or UK resident from 1990 onwards, he or she could be prosecuted for a war crime carried out in Germany during the Second World War, regardless of his or her nationality at that time.

As we know judicial precedent takes effect from the date of judgement. R v R is used as an example of retrospective effect. CR v UK 1995) a challenge was made in the European Court of Human Rights under Article 7 however the challenge failed because earlier cases were beginning to recognise the offence and the offence supported fundamental objectives of the ECHR.